Block-Victor v. Citg Promotions, L.L.C.
| Decision Date | 13 October 2009 |
| Docket Number | Case No. 07-CV-12055. |
| Citation | 665 F.Supp.2d 797 |
| Parties | ELAINE BLOCK-VICTOR, Lisa DaSilva, and Kimberly Nikkila, Plaintiffs, v. CITG PROMOTIONS, L.L.C. d/b/a Evigna, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Michael L. Pitt, Megan Bonanni, Pitt, McGehee, Royal Oak, MI, for Plaintiffs.
Allyson A. Miller, Timothy H. Howlett, Dickinson, Wright, Detroit, MI, for Defendant.
ORDER GRANTING, IN PART, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 18)
Defendant CITG Promotions, L.L.C. d/b/a Evigna moves for summary judgment of plaintiffs Elaine Block-Victor's, Lisa DaSilva's, and Kimberly Nikkila's claims of age discrimination in violation of the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and Michigan's Elliott-Larsen Civil Rights Act ("ELCRA"), §§ 37.2101 et seq., as well as Nikkila's claim of weight discrimination in violation of the ELCRA. A hearing was held on July 7, 2009. For the reasons set forth below, Evigna's motion for summary judgment will be granted, in part, as to DaSilva's and Nikkila's ADEA. DaSilva's and Nikkila's ELCRA claims will be dismissed, without prejudice, with the court declining to exercise supplemental jurisdiction over these state law ELCRA claims. Evigna's motion for summary judgment will be denied, in part, as to Block-Victor's ADEA and ELCRA claims.
Plaintiffs filed their complaint in federal court on May 10, 2007 alleging that Block-Victor was constructively discharged from Evigna on June 19, 2006, and that DaSilva, and Nikkila were terminated from Evigna on August 14, 2006, pursuant to Evigna's pattern and practice of favoring younger employees. Plaintiffs each allege that they were replaced by substantially younger employees. Nikkila alleges she was also terminated because of her weight.
Evigna purchased the promotional marketing division of Beanstalk on May 24, 2004. Prior to the purchase by Evigna, Beanstalk was losing approximately $ 3.0 million per year. Part of Evigna's motivation for purchasing Beanstalk was its client base. Evigna inherited seventy-two Beanstalk Sales Department employees, including Block-Victor, DaSilva, and Nikkila. By mid-2005, Evigna experienced a modest profit. On May 1, 2005, Evigna moved all of its sales employees from a commission-based pay to salary.
On May 1, 2005, Evigna took Block-Victor off commissions and her title was changed from an Executive Vice President position to Regional Vice President of Auto East Division, with a $175,000.00 salary. Under a commission-based pay system, Block-Victor had earned from $250,000.00 to $500,000.00 a year from 2001 through 2005. On October 14, 2005, Block-Victor inadvertently discovered a management chart depicting that she was going to be removed from her Regional Vice President position and replaced by her 34-year-old subordinate, Anthony Schmidt. On October 18, 2005, Evigna Chief Executive Officer ("CEO") Jeff Beckett told Block-Victor that she could no longer work from her home in the mornings, and that she had to either work 8:00 a.m. to 5:00 p.m. at the office, work part-time, or become a consultant. Block-Victor asserts that, in contrast, younger salespersons Anthony Schmitt, Monique Erving, and Roberta Smith were permitted to work from home. After protesting this proposed work-schedule change, Block-Victor was permitted to remain working in the mornings from her home. In November 2005, Executive Vice President David Morrison allegedly told co-plaintiff DaSilva that "[Block-Victor] was past her prime and should have known when to leave." DaSilva Tr. at 152. At a February 2006 National Sales Meeting, Block-Victor's Executive Vice President duties were formally taken away from her, and at the same meeting, she was presented with the 2005 "Most Profitable Salesperson of the Year" award. Block-Victor was reassigned to the position of Strategic Account Director-GM/UAW. On June 19, 2006, new Executive Vice President of Sales and New Business Development Barkey Clarke told Block-Victor that her salary was being "updated" effective July 1, 2006, from $175,000.00 to $100,00.00. After the June 19, 2006 meeting, Block-Victor went on medical leave and did not return to Evigna. Block-Victor was 67 years of age, and the oldest salesperson at Evigna.
Block-Victor argues that she was excluded from a New Business Development Team made up of Evigna owners Shan Mehta and CEO Beckett, and Executive Vice President Clarke, Executive Vice President Morrison, and Executive Vice President of Customer Care Mark Belanski. Block-Victor asserts that she was likewise excluded from the Team's shared "War Room" office, and was only given new sales leads after she complained in 2006. Block-Victor maintains that younger Evigna sales personnel had salaries comparable to her $175,000.00 salary, but their salaries were not reduced.
According to DaSilva, after Evigna purchased Beanstalk in May 2004, but before the conversion of sales personnel from a commission-based pay to a salaried based pay on May 1, 2005, "there was conversation going around that [Evigna] wanted to replace all the older salespeople with younger sales people[.]" DaSilva Tr. at 57. DaSilva testified that she talked with Executive Vice President Belanski about the issue because she felt she had been interviewed for her own job by Evigna CEO Beckett, and because she observed Evigna hire approximately six "undergrads right out of college." Id. at 57-58. According to DaSilva, when she asked Belanski "What is all this with them trying to replace the salespeople with younger people, thinking that they could just — that we were just order-takers?" Belanski made a comment to the effect that "yeah, that was something — that was a battle he was going to have to fight[.]" Id.
In August 2004, Steve Lemberg asked DaSilva to transfer to Bethesda, Maryland to serve as Evigna's on-site representative at Evigna client Avendra/Marriott1. DaSilva agreed to maintain and share responsibility with Executive Vice President Morrison for Evigna client Ford Motor Company. DaSilva was promoted to a Vice President position in January 2005, her salary was increased from $75,000.00 to $95,000.00, and she received a $6,250.00 bonus. In February 2005, Executive Vice President Belanski and DaSilva agreed that DaSilva would commute from Michigan to Avendra/Marriott in Maryland. David Granetz eventually took the on-site position at Avendra/Marriott. In June 2005, DaSilva's request to be relieved of her Ford account responsibilities was granted. From June 2005 through August 2005, Avendra/Marriott was DaSilva's only account. DaSilva returned to Evigna's Detroit Office in July 2005, commuting back and forth to Maryland. According to DaSilva, in September 2005, on the suggestion of Executive Vice President Morrison, Executive Vice President Belanski asked DaSilva to relocate to Florida as the Vice President of Hospitality Sales with a $105,000.00 salary. DaSilva was to help reconstruct a dysfunctional office located in Celebration, Florida. DaSilva permanently relocated to Florida in the Fall of 2005 while retaining her responsibilities for the Avendra/Marriott account.
In January 2006, Evigna hired Executive Vice President of Sales Keith Amen, age 33. Amen became DaSilva's direct supervisor. Amen allegedly encouraged DaSilva to hire 34-year-old female Bevin Jacobson in Florida as the Disney Account Manager, over DaSilva's objections that Jacobson was over-qualified. Jacobson took the job based in part on representations by CEO Beckett and Executive Vice President Clarke that the Florida location was a growth office that might, in the future, support a second Vice President position. Jacobson was hired at a $95,000.00 salary, not the $75,000.00 salary offer DaSilva recommended.
Avendra's three-year contract with Evigna was to expire in December 2006. Avendra had become dissatisfied with Evigna's services. Executive Vice President Clarke met with Avendra's Georgie Gabor, and was allegedly told by Gabor that DaSilva needed more management support from Evigna. Gabor allegedly told Marriott Account Manager Granetz that Avendra did not want a management change, and that DaSilva should not be replaced. According to DaSilva, Clarke did not consult her. DaSilva allegedly learned instead from Gabor that she, DaSilva, was no longer on the Avendra account. DaSilva asserts that Jacobson was given the Avendra account even though Clarke admitted that Avendra was 90% satisfied with DaSilva, but only 50-60% satisfied with Evigna. DaSilva asserts that she was replaced as Vice President of Hospitality Sales in June 2006 by Jacobson. DaSilva maintains that she was thereafter presumably working as an Account Manager for the Marriott/Ritz Carlton Vacation Club account, with no direct report. On August 14, 2006, DaSilva was terminated due to "cost savings" as allegedly told to her by Clarke. DaSilva was 48 years of age.
Nikkila worked as an Evigna Accounts Manager for clients Marriott, Daimler Chrysler, Oakwood Hospital, and Ford. Nikkila reported directly to co-plaintiff DaSilva, initially making $45,000.00 a year. Nikkila was promoted to Senior Account Manager in October 2005, making a $52,000.00 salary. According to DaSilva, after an Evigna sales representative resigned, Executive Vice President Amen found that Nikkila would be a "good fit" to take over the Ritz Carlton account. DaSilva Tr. at 160. DaSilva believed that Nikkila was already being underpaid, and that it seemed like a reasonable request for Nikkila to ask for a raise. DaSilva attests that, in response to the raise request, Amen told her that Evigna "could get other people for less money." Id. at 161. DaSilva attests that she assumed that...
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